The extent to which a landlord can be liable for the acts of his tenants is a vexed topic, which we’ve discussed on a number of occasions before. The cases rather lean against liability. It is, therefore, very interesting to find Mackay J allowing a claim in nuisance to proceed in Brumby v Octavia Hill Housing Trust [2010] EWHC 1793 (QB).
Private nuisance is, as you all know, a tort involving the unlawful interference with the enjoyment of land. A landlord is not usually liable for acts of nuisance by his tenants unless he has, for example, encouraged to approved of the nuisance behaviour: see Smith v Scott [1973] Ch 314; Hussain v Lancaster CC [2000] 1 QB 1 and Mowam v LB Wandsworth [2001] 33 HLR 56. It is, however, possible for a landlord to adopt the nuisance of a third party if, with actual or constructive knowledge of the nuisance, he fails to take reasonable steps to abate the nuisance: Sedleigh-Denfield v O’Callaghan [1940] AC 880.
Ms Brumby was the assured tenant of Octavia Hill Housing Trust, living in a flat in a block. She alleged that visitors to another tenant in another flat were responsible for nuisance in the common parts (the approach to the flats, the communal stairs and stairwell, etc). Those common parts were retained by the landlord. The landlord had notice of the nuisance and had failed to take steps to abate it within a reasonable time. Accordingly, she argued that the landlord had adopted the nuisance and issued proceedings for nuisance and breach of the covenant for quiet enjoyment.
The landlord applied to strike the claim out, arguing (a) that Mowam, Hussain et al made clear that it was only in exceptional circumstances that a claim for nuisance could be maintained against a landlord in respect of acts by third parties and (b) Southwark LBC v Tanner [2001] 1 AC 1 prevented the court from imposing obligations on the landlord that went above and beyond the terms of the contract or statutory obligations. In the county court, the claim for breach of the covenant for quiet enjoyment was struck out, but the claim in nuisance was allowed to proceed; the case was entirely factual and would have to be determined at trial and the rule in Sedleigh-Denfield was not affected by Mowam et al.
The landlord appealed, unsuccessfully, to the High Court. Mackay J agreed with HHJ Gibson. Whether or not the landlord had adopted the nuisance was a question of fact that had to be determined at trial. Whether or not the nuisance had been adopted was governed by the Sedleigh-Denfield decision, which had not been affected by Mowam, Hussain etc. The case would have to proceed to trial.
Now, I’m no fan of Hussain, Mowam etc and would gladly see them overruled, but, in the meantime, this is a very encouraging way of getting round the problem. Not in all cases, admittedly, but it’s a start. Fingers crossed that Ms Brumby can succeed at trial as well.
Finally, hat tip to Ian Loveland, counsel for Ms Brumby, who has been pushing this argument for some time in various articles. It’s good to see him finally getting a chance to run it, and successfully. Also, the NL team doffs its collective cap to Miles and Partners, solicitors for Ms Brumby. That’s two interesting High Court cases in a week (Poplar Harca v Howe, below) and, as they only have 3 housing lawyers (according to their website), that’s a pretty good showing.